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Christian Jones v. Lt. Pugh

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


October 6, 2011

CHRISTIAN JONES,
PLAINTIFF
v.
LT. PUGH, ET AL., DEFENDANTS

The opinion of the court was delivered by: Magistrate Judge Blewitt

(Judge Jones)

REPORT AND RECOMMENDATION

I. Background.

Plaintiff, Christian Jones, formerly an inmate at the Luzerne County Correctional Facility,

Wilkes-Barre, Pennsylvania ("LCCF"), and currently an inmate at SCI-Green, Waynesburg, Pennsylvania, filed this civil rights action with this Court, pursuant to 42 U.S.C. § 1983, on February 18, 2010. (Doc. 1). Plaintiff also filed a Motion for Leave to Proceed in forma pauperis (Doc. 4). We screened Plaintiff's Complaint pursuant to the Prison Litigation Reform Act of 1995,*fn1 since the PLRA obligates the Court to engage in a screening process when a prisoner wishes to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

On March 12, 2010, we issued a Report and Recommendation ("R&R") and recommended that all of Plaintiff's claims against Defendants Elmy and Berman be dismissed, and that these two Defendants be dismissed entirely from this case. Further, we recommended that Plaintiff's claim for verbal sexual harassment against Defendant Pugh be dismissed. Additionally, we recommended that Plaintiff's Eighth Amendment denial of proper medical care claim be dismissed. Moreover, we recommended that Defendant LCCF be dismissed. Finally, we recommended that only Plaintiff's Eighth Amendment excessive force claim against Defendant Pugh regarding the pushing incident be allowed to proceed. (Doc. 7).

On August 23, 2010, the District Court issued a Memorandum and Order adopting in part our R&R. (Doc. 12). Specifically, the District Court ordered that:

2. Defendant Luzerne County Correctional Facility is DISMISSED from this action.

3. Plaintiff's Eighth Amendment failure to protect claim against Defendant Berman and Plaintiff's claims of verbal and sexual harassment are DISMISSED.

4. Within twenty-one (21) days of the date of this Order, Plaintiff may file an amended compliant setting forth his Eighth Amendment denial of proper medical care claim, and his First Amendment retaliation claim.

5. Plaintiff's failure to file an amended complaint will result in dismissal of the Eighth Amendment denial of proper medical care claim and the First Amendment retaliation claim, as well as the dismiss of Defendant Berman with prejudice. Plaintiff's case will then proceed only on the Eighth Amendment excessive force claim against Defendant Pugh and the Eighth Amendment failure to protect claim against Defendant Elmy.

6. Plaintiff's request to proceed without pre-payment of fees and costs (Doc. 4) is GRANTED.

7. Plaintiff's Motion for Monetary Damages (Dkt. 8) is DENIED. (Doc. 12, pp. 22-23)(emphasis added).

Since Plaintiff failed to file an Amended Complaint within the specified time, we issued an Order on September 20, 2010, directing the Clerk of Court to issue process to the U.S. Marshal and directing the Marshal to serve Plaintiff's Complaint on Defendants Pugh and Elmy with respect to his Eighth Amendment claims against them. (Doc. 13).

On October 18, 2010, Defendants Pugh and Elmy filed their Waiver of Service forms. (Docs. 14 and 15). Defendants' responses to Plaintiff's Complaint were due on November 29, 2010. (Id.).

On November 29, 2010, Defendants Pugh and Elmy jointly filed an Answer to Plaintiff's Complaint with Affirmative Defenses. (Doc. 22). Defendants' Answer was served on Plaintiff, and it was timely filed.

Discovery then commenced in this case. The discovery deadline was April 14, 2011. (Doc. 38).

Subsequently, Defendants sent Plaintiff a Request for Production of Documents, as well as Interrogatories. On March 21, 2011, Plaintiff filed a 2-page "Petition To Not Be Held Responsible/Obligated To Produce Documents." (Doc. 39). On March 23, 2011, we issued an Order and denied Plaintiff's Doc. 39 Petition. (Doc. 41).

On March 28, 2011, Defendants filed a Motion to Depose Plaintiff. (Doc. 43). On March 29, 2011, we issued an Order and granted Defendants' Doc. 43 Motion. (Doc. 45). Also, on March 28, 2011, Defendants filed a Motion to Amend/Correct the Doc. 38 scheduling order. (Doc.

44). By Order of March 29, 2011, we granted Defendants' Doc. 44 Motion and extended the case management deadlines. (Doc. 46). The discovery deadline was extended to June 14, 2011.

On April 4, 2011, Plaintiff filed a 1-page "Petition to Refuse Deposition and Not to Amend the Case Management Order of March 15, 2011." (Doc. 48). On April 7, 2011, we denied Plaintiff's Petition and found that Defendants were entitled to depose Plaintiff with respect to his remaining claims. See Dover v. Diguglielmo, 181 Fed.Appx. 234, 237 (3d Cir. 2006)(inmate's civil rights case could be dismissed based on his refusal to be deposed). As the Third Circuit stated in Dover, "Defendants [DOC prison employees] had a right to prepare their defense by deposing [Plaintiff inmate]." Additionally, we denied Plaintiff's request that the Court refrain from extending the case management deadlines. As stated, we extended the discovery deadline to June 14, 2011, since we found that the parties required additional time to gather their evidence. (Doc. 50).

On July 14, 2011, after the close of discovery, Defendants Pugh and Elmy timely filed a Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56, a Statement of Material Facts ("SMF") with attached exhibits, Exs. A-F, and a support brief. (Docs. 61, 62 and 63).

On August 4, 2011, Plaintiff filed a 1-page "Petition for Settlement" in which he requests the Court to give him a cash settlement in his present case in the amount of $25,000 or in an amount he and Defendants agree upon. (Doc. 65). We will recommend that Plaintiff's "Petition for Settlement" be denied since the Court has no authority to order Defendants to settle this case. Further, since Defendants have already filed a dispositive motion which is now pending, it appears as though Defendants do not wish to try and settle this case. In any event, if Defendants desire to have settlement talks with Plaintiff, they are certainly free to do so.

On August 23, 2011, Plaintiff filed a 1-page opposition brief to Defendants' Summary Judgment Motion and response to Defendants' SMF. (Doc. 67). Plaintiff did not file a proper response to Defendants' SMF and he did not submit any evidence. Also on August 23, 2011, Plaintiff notified the Court of his new address at SCI-Green in Waynesburg, Pennsylvania. (Doc. 70). Plaintiff also requested more time to respond to Defendants' Summary Judgment Motion and SMF, and he indicated that in the beginning of September 2011, he will receive ten free envelopes to mail his response. Plaintiff has had over one month since his August 23, 2011 letter to file additional responses to Defendants' Summary Judgment Motion and SMF, and to date, Plaintiff has not submitted any further documents in response to Defendants' dispositive motion. On September 15, 2011, Plaintiff filed a second notice of change of address and request for copies of documents filed. (Doc. 69).

On September 23, 2011, Plaintiff filed an 8-paragraph Motion to Compel Defendants respond to his requests for documents and interrogatories along with a 1-page support brief. (Docs. 71 and 72). Plaintiff seeks the Court to direct Defendants to respond to his discovery requests as to whether they "may have had or have ... a problem with drugs and/or alcohol which possibly could have played a part or fueled the heinous assault against [him]." (Doc. 71). In his brief, Plaintiff states that he is requesting the Court to allow him to "look into Defendants' past, their jobs and job performance and if they have any disciplinary actions taken against them by their employer [LCCF] and to see if they have a criminal record." Plaintiff also states he is trying to find out if Defendants have "any other violent episodes in their past." (Doc. 72).

We will recommend that Plaintiff's untimely Motion to Compel (Doc. 71) be denied. As stated, the extended discovery deadline in this case expired on June 14, 2011. Plaintiff's Motion to Compel is over three months late. We also find that Plaintiff's attempt to try and show Defendants' "character," and to show Defendants may have a "checkered past" seeks, in part, documents which are not relevant and which are over broad. Further, Plaintiff states no basis for his request for documents to find out if Defendants "are battling with a drug and/or alcohol addiction and if they've searched help for it in the past." (Doc. 72). In fact, Plaintiff states no basis for any of his requests pertaining to Defendants' "character." Rather, Plaintiff appears to be entirely on a fishing expedition.

In any event, as discussed below, we find that the undisputed evidence in this case shows that Defendants are entitled to summary judgment with respect to Plaintiff's Eighth Amendment claims against them, and we find that Plaintiff's stated discovery requests into Defendants' past and character would not alter the material facts regarding the February 2010 alleged pushing incident at LCCF.

Defendants did not file a reply brief regrading their Summary Judgment Motion. Defendants' Summary Judgment Motion is ripe for disposition.*fn2

II. Summary Judgment Standard.

A motion for summary judgment may not be granted unless the moving party is entitled to judgment as a matter of law. Fed. Rules of Civ. P. 56. The court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to any material fact. F.R.C.P. 56( c ). An issue of fact is "genuine" only if a reasonable jury, considering the evidence presented, could find for the nonmoving party. Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).

The burden of proving that there is no genuine issue of material fact is initially upon the movant. Forms, Inc. v. American Standard, Inc., 546 F. Supp. 314, 320 (E.D. Pa. 1982) aff'd. mem. 725 F.2d 667 (3d Cir. 1983). Upon such a showing, the burden shifts to the nonmoving party. Id. The nonmoving party is required to go beyond the pleadings and by affidavits or by "depositions,answers to interrogatories, and admissions on file" designate "specific facts showing that there is no genuine issue for trial." F.R.C.P. 56(e).

In determining whether an issue of material fact exists, the court must consider the evidence in the light most favorable to the nonmoving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In doing so, the court must accept the non-movant's allegations as true and resolve any conflicts in his favor. Id. quoting Gans v. Mundy, 762 F.2d 338, 340 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976).

Moreover, the Third Circuit has indicated that, "although the party opposing summary judgment is entitled to the 'benefit of all factual inferences in the court's consideration of a motion for summary judgment, the nonmoving party must point to some evidence in the record that creates a genuine issue of material fact,' and 'cannot rest solely on assertions made in the pleadings, legal memorandum, or oral argument.'" Goode v. Nash, 2007 WL 2068365 (3d Cir. 2007) (Nonprecedential)(citation omitted).

In Reynolds v. Federal BOP, 2010 WL 744127, * 3 (M.D. Pa.), the Court stated:

Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment should be "rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is material when it "might affect the outcome of the suit under the governing law." Id. After reviewing the evidence, the court makes all reasonable inferences from the evidence in the light most favorable to the non-movant. In re Flat Glass Antitrust Litig., 385 F.3d 350, 357 (3d Cir.2004).

Further, parties filing Statements of Material Facts or answers to SMF must be in accordance with the Middle District of Pennsylvania's Local Rule 56.1, M.D. Pa. In McCoy v. Edwards, 2009 WL 1794749, * 2 (M.D. Pa. 2009), the Court stated as follows with respect to M.D. Pa. LR 56.1:

A motion for summary judgment filed pursuant to F.R.C.P. 56, shall be accompanied by a separate, short, and concise statement of material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried. The papers opposing a motion for summary judgment shall include a separate, short, and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph as to which it is contended that there exists a genuine issue to be tried. Statements of material facts in support of or in opposition to, a motion shall include references to the parts of the record that support the statements. (Emphasis added). All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.

III. Statement of Material Facts.

As mentioned, Plaintiff failed to file a proper paragraph-by-paragraph response to Defendants' SMF as required by Local Rule 56.1, M.D. Pa. In fact, Plaintiff did not submit a specific response to any of Defendants 11-paragraph SMF with his combined opposition brief. (Doc. 67). Additionally, Plaintiff did not submit any evidence to dispute the Defendants' SMF and their attached evidence, which largely consists of Plaintiff's prison medical records and the Affidavits of Defendants, as well as an excerpt from Plaintiff's deposition testimony, which is cited to in their SMF. (Doc. 62). Thus, Plaintiff failed to follow Local Rule 56.1, M.D. Pa., as he was required to do.*fn3 Defendants, however, properly filed their SMF according to Local Rule 56.1. (Doc. 62). We find that ¶'s 6-11 are the relevant SMF of Defendants with respect to Plaintiff's two remainingclaims. Defendants cited to evidence in the record with respect to ¶'s 6-11 of their SMF and they are undisputed. (Doc. 62, pp. 3-11).*fn4 Therefore, we find Plaintiff has not properly responded to Defendants' SMF as required by LR 56.1 of M.D.Pa. See Cyrus v. Laino, Civil No. 08-1085, M.D. Pa.; Cyrus v. Freynik, Civil No. 08-2278, M.D. Pa.; Michtavi v. Martinez, 2009 WL 5172962 (M.D. Pa.); Accolla v. U.S., 2009 WL 3625383 (M.D. Pa.), affirmed 2010 WL 763550 (3d Cir.)(Third Circuit found that since Plaintiff inmate in civil rights action did not properly respond to prison staff Defendants' statement of facts as required by L.R. 56.1, M.D. Pa., Defendants' statement of facts were undisputed); Velentzas v. U.S.A., Civil No. 07-1255, M.D. Pa., 2010 WL 3896192 (8-31-10). Because of Plaintiff's failure to properly deny Defendants' Statement of Facts, we accept ¶'s 6-11 of Defendants' Statement of Facts since they are all supported by their evidence (Doc. 62, ¶'s 5-11 and Exs. A-F) and since Plaintiff has not responded to them.

In Hodge v. United States, 2009 WL 2843332 (M.D. Pa.), the Court found that Defendants' SMF, which were in accordance with LR 56.1, were deemed admitted not only because the Plaintiff, an inmate proceeding pro se, failed to follow LR 56.1, but also because the Defendants properly cited to evidence on record and Defendants' evidence was not disputed by Plaintiff. See Hodge at *13. The Court stated:

Plaintiff received a copy and explanation of the Local Rules pursuant to the court's standing practice order for actions by pro se plaintiffs. Examinations of both plaintiff's Answer to Defendants' Statement of Facts and the exhibits plaintiff filed separately reveal that neither filing constitutes the paragraph-by-paragraph response to the moving party's statement of material facts that LR 56.1 plainly requires and of which Plaintiff Hodge had ample notice. As such, the court will adopt the magistrate judge's recommendation that Defendant's SMF should be deemed admitted under LR 56.1 and his reliance on those facts for the purpose of assessing Defendants' motion for summary judgment.

Id.*fn5

Further, we have reviewed ¶'s 6-11 of Defendants' SMF, and all of the facts stated therein are accurately supported by reference to their evidence, Doc. 62, Exs. C-F. Defendants' undisputed relevant SMF are as follows:

6. The sworn Affidavit of James Larson is attached hereto [Doc. 62] as Exhibit "C". Major Larson's sworn testimony, which is undisputed, is as follows:

1. I have reviewed the lawsuit filed by Christian

Jones in the case of Christian Jones v. Luzerne County Correctional Facility, et al., No. 3:10-cv-359.

2. I have reviewed the facts and circumstances related to the Complaint filed by Christian Jones.

3. Attached to this Affidavit as Exhibits "A" and "B" respectively are the only two grievances filed by Christian Jones during the relative [sic] time frame for the incidents which have been alleged in this Complaint. In each instance, these grievances were processed and a hearing was held relating to the complaints registered by Inmate Jones. No other grievances have been submittedby Christian Jones and, for the most part, Christian Jones failed to comply with the grievance procedure in place at the Luzerne County Correctional Facility.

4. Upon admission to the Luzerne County Correctional Facility, all inmates, including those inmates who are classified in the work release program and provided with an Inmate Handbook and are advised of the grievance procedure that exists at the prison.

5. I have reviewed the specific allegations of the Complaint which is the subject of this lawsuit.

6. The allegation by Christian Jones that he was repeatedly subjected to physical abuse and verbal harassment at the hands of Correctional Officers affiliated with the work release program, specifically Captain James Pugh and Correctional Counselor Louis Elmy are false.

7. Any disciplinary action which was undertaken relative to Christian Jones was precipitated by Jones' failure to abide by the rules of the work release program.

8. Specifically, on Thursday, February 4, 2010, at 9:25 a.m. the Plaintiff Jones was released from the Luzerne County Correctional Facility's work release facility to report for his job at the Wendy's Restaurant located at 980 Schecter Drive in Wilkes-Barre.

His scheduled shift for this day was from 11:00 a.m. to 4:00 p.m. with 90 minutes allotted for travel time. At 11:15 a.m., Vicky Mitchell, Manager at Wendy's called and indicated that, "Christian Jones failed to show up for work." It was further report to Correctional Counselor Lou Elmy that at 12:05 p.m. Jones had still failed to report to work. Correctional Counselor Elmy followed up again at 1:00 p.m. and Jones had still not appeared for work.

9. Inmate Jones did return back to the work release program at approximately 6:00 p.m. Accordingly, Jones was unaccounted for approximately 4.5 hours.

10. This information was completed on the misconduct report identified as Exhibit "C" to my Affidavit. This conduct on the part of Jones is a violation of the rules of the work release program.

11. I have reviewed all of the records which have been incorporated into the Summary Judgment submission of the Luzerne County Defendants and verify that these records are kept in the ordinary course of business and that the reports are made at or in close proximity to the events which are related in each respected [sic] report. (Exhibit "C").

7. The sworn Affidavit of James Pugh is attached hereto [Doc. 62] as Exhibit "D". Mr. Pugh's sworn testimony, which is undisputed, is as follows:

1. I have read the Complaint filed by Christian Jones in the case of Christian Jones v. Luzerne County Correctional Facility et al., to No. 3: 10-cv-359, and am familiar with the allegations which have been made by Christian Jones.

2. Based upon my personal knowledge, information and belief, if Jones was subjected to verbal abuse by Correctional Officers at the work release center this information was not related to me by Christian Jones.

3. Furthermore, I have read the allegations set forth in Jones' Complaint that I physically assaulted him by pushing him into Lou Elmy's desk and Jones' contention that he sustained injuries as a result of this altercation.

4. The allegation by Christian Jones that I had a physical altercation with is categorically false. I never engaged in any assault of Jones nor was I even required to restrain him. The allegation by Jones that he sustained injury and that he had medical conditions that went untreated is untrue. In the event that Jones required attention for any medical condition from which he suffered, the standard protocol at the correctional facility and work release center would be followed and Jones, upon submission of a request, would be seen by the medical department in due course.

5. I verify that all the facts contained in this Affidavit are true and correct and based upon my personal information and belief. (Exhibit "D").

8. The sworn Affidavit of Lou Elmy is attached hereto [Doc. 62] as Exhibit "E". Mr. Elmy's sworn testimony, which is undisputed, is as follows:

1. Upon being notified that I was a defendant in the lawsuit filed by Christian Jones in the case of Christian Jones v. Luzerne County Correctional Facility et al., to No. 3: 10-cv-359, I reviewed the misconduct reports which are the subject matter of this lawsuit.

2. Christian Jones was disqualified from the work release program because of his actions on or about February 5, 2010 (my written report relative to the circumstances surrounding that incident is attached to this Affidavit as Exhibit "A").

3. Specifically, on Thursday, February 4, 2010, at approximately 9:25 a.m. Christian Jones was released from the Luzerne County Correctional Facility's work release center in order to report to his employment at Wendy's Restaurant located at 980 Schecter Drive, Wilkes-Barre, Pennsylvania.

4. Jones was scheduled for a shift to commence at 11:00 a.m. and to conclude at 4:00 p.m. with 90 minutes allotted for travel time.

At 11:15 a.m. Vicky Mitchell, the Manager at Wendy's, contacted the work release center indicating that Jones had failed to show up for work. At 12:05 p.m., I contacted Vicky Mitchell, who indicated that Jones had still failed to report to work. I followed-up again 1:00 p.m. and once again spoke with Vicky Mitchell who indicated that Christian Jones had still not arrived for his scheduled shift.

5. As a result of Jones being two hours late for work, a 48 hour attempt to locate Jones was instituted. Jones did return to the work release facility at approximately 6:00 p.m. However, by virtue of his failure to report to work he was reported to have been unaccounted for approximately 4 and 1/2 hours.

6. Jones' failure to report to work constituted a violation of the Order of Court permitting him to participate in the work release program. Jones' conduct on the date in question also constitutes a direct violation of the regulations of the work release facility.

7. I am, during the relevant time frame, Christian Jones' Correctional Counselor. With respect to the allegations of the Complaint, I verify and attest that at no time did Jones indicate to me that he had been subjected to verbal abuse by correctional staff at the Luzerne County Prison. In addition, at no time did Jones indicate to me that he had been assaulted either by Captain Pugh or any other correctional officer at the facility. Finally, at no time did Jones indicate to me that requests for medical treatment at the facility had been refused.

8. I verify that all the facts set forth in this Affidavit are true and correct and based upon my personal knowledge. (Exhibit "E").

9. The sworn testimony of Christian Jones was taken on May 3, 2011, at the State Correctional Institute at Camp Hill (the deposition of the Plaintiff Christian Jones is identified in the summary judgment record [Doc. 62] as Exhibit "F").

10. It is undisputed with regard to the incident in which Jones alleges he was injured and pushed into a desk without provocation by Lt. Pugh the following colloquy occurred between counsel for the Defendants and Mr. Jones:

Q Well, it took us awhile to be processed in here. Nothing we can do about that.

You indicate that you were pushed into a desk - -A [Plaintiff] Un-huh.

Q - - by Lt. Pugh. Is that accurate?

A Yes.

Q When did that incident occur?

A Well, I didn't file the Complaint until some days afterward but - -Q Well, you executed your Complaint on February the 11th of 2010.

A See, my paper says the 10th.

Q I can show you the Complaint that was provided to me. It says February 11, 2010. Do you see that?

A Yes, I do.

Q So it's your allegation that some time prior to February 11, 2010, you were pushed into a desk.

A Yes.

Q By Lt. Pugh. Is that accurate?

A Yes, it is.

Q Tell me what precipitated that incident. * * * *

A I guess he said, well, you don't do this, you don't do that. He started calling me names, and he got loud, and I was like, well, I am not going to sit here and allow you to continue to do that and not do anything about it. That is when he got in my face and eventually he pushed me, and when he did that I got up off the floor, and I was like, okay, and either I knew that I was going to get packed soon and/or I am going to have to do something. * * * *

Q Did any other correctional officer during this period of time in or about February of 2010 push you or assault you in any way?

A No.

Q Now, you say you fell on the ground; is that right?

A Fell on the floor, yes. The small of my back hit the desk and I hit the floor. ([Doc. 62] Exhibit "F", p. 15, ln 17-25; p.16, ln. 1-12; p. 17, ln. 3-10; ln. 17-24).

11. It is undisputed, by his own admission, Jones did not sustain a serious injury as a result of his allegation. Specifically, when asked did he sustain any injury as a result of being pushed into the desk, Jones testified as follows:

A Just bruised and sore lower back. I waiting until when I got back to the main jail, and when I continued to have pain or - -it was stiff. I just went to the Mid Line and just paid for $9 for Motrin for the month.

Q Did you ever make a request to be treated at the infirmary?

A No, I didn't.

Q Did the soreness ultimately go away?

A Yes. It wasn't to the point where he fractured or broke anything. I got knocked against the desk.

Q You got knocked against the desk and you had a sick call or you didn't have a sick call?

A No. I just went to the nurse and just paid the $9 for the Motrin for the month to take it PRN as needed. Q For what period of time was your back sore?

A Off and on for a couple of months.

Q That is essentially, other than this name calling that you have discussed, that is the only allegation that you have in this Complaint.

A That is it. That is all I have ever said. (Exhibit "F" at p. 18, ln. 22-25, pg. 19, ln. 1-16) (Doc. 62, pp. 3-11, ¶'s 6-11).

IV. Discussion.

In his Complaint, Plaintiff alleged that he was a "black, gay, terminally ill ... convicted felon" who arrived at LCCF, seemingly sometime in 2009, for work release to complete service of his sentence.*fn6 Plaintiff averred that since his arrival at LCCF for work release, he was constantly verbally and sexually harassed by Defendants Elmy and Pugh, and by former Defendant Berman. Plaintiff stated that he wrote requests to LCCF supervisors and asked them to stop the harassment, but it did not stop. Plaintiff stated that Defendants threatened to harm him if he continued to send requests to the prison supervisors. Plaintiff averred that he was made to strip and his room was repeatedly searched, and that his belongs were thrown about his room in disarray. Plaintiff alleged that Defendants called him sexually derogatory names. Plaintiff averred that he was "physically abused by [Defendant] Lt. Pugh." (Doc. 1, p. 1).

Plaintiff alleged that when, on an unspecified date, he asked Defendant Pugh to stop calling him sexually derogatory names, "Lt. Pugh got in my face ... and he pushed me against [Defendant] Elmy['s] desk injuring my lower back and knocking me to the floor." (Id., p. 2).

As stated, Plaintiff's case is proceeding only on his Eighth Amendment excessive force claim against Defendant Pugh and on his Eighth Amendment failure to protect claim against Defendant Elmy.(Doc. 12, p. 23).*fn7 Both of Plaintiff's claims arose during his prior confinement at Luzerne County Correctional Facility, Wilkes-Barre, Pennsylvania ("LCCF"). Plaintiff was participating in LCCF's work release program. Defendants Pugh and Elmy were employed at LCCF during the relevant times of this case and they were affiliated with the work release program. Defendant Pugh was a Captain and Defendant Elmy was a Correctional Counselor. (Doc. 62, Ex. C).

1. Eighth Amendment Excessive Force Claim against Defendant Pugh

Defendants state they "concede that there is a dispute in the record as to whether Defendant Pugh pushed [Plaintiff] Jones." (Doc. 63, p. 18). We agree since Plaintiff's deposition testimony, quoted above, is in direct contradiction to Defendant Pugh's stated Affidavit. However, Defendants contend that this dispute is not material. Defendants state that despite Plaintiff's deposition testimony that Defendant Pugh pushed him, that the small of his back hit a desk and that he fell on the floor, Pugh is still entitled to summary judgment due to the de minimis nature of the contact. (Id.). Plaintiff testified that his lower back was bruised and that he had to take Motrin for a month, but he never requested to be treated in the infirmary and the pain eventually went away. Plaintiff stated that his back was sore on and off for a couple of months. (Doc. 62, Ex. F, pp. 15-16 and 18-19).

As stated, Plaintiff has sufficiently shown via his deposition testimony that a disputed fact exists as to whether Defendant Pugh pushed him sometime in early February 2010 at LCCF and, whether Plaintiff hit a desk with his back and fell on the floor. It is, however, undisputed that Plaintiff only received a very minor injury as a result of this alleged pushing incident. Plaintiff did not require medical treatment by LCCF's infirmary or medical staff, and he only had to take Motrin for about one month for a sore back. Plaintiff also testified that his back was sore intermittently for a couple of months.

In order to establish an Eighth Amendment excessive force claim against Defendant Pugh, the Court stated in Freeman v. Bronkoski, 2008 WL 4414725, *4 (M.D. Pa.):

The Third Circuit Court of Appeals has noted that "[a]fter conviction, the Eighth Amendment serves as the primary source of substantive protection in cases where an inmate challenges a prison official's use of force as excessive and unjustified. Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000).

In considering such a claim, the fact-finder must determine " 'whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause. harm." " Id. (quoting Hudson v. McMillan, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)). When " 'it appears that the evidence, viewed in the light most favorable to the plaintiff, will support a reliable inference of wantonness in the infliction of pain," summary judgment is inappropriate for the defendant. Id. (quoting Whitley v. Albers, 475 U.S. 312, 322, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)). Five factors apply in determining whether a correctional officer used excessive force: "(1) 'the need for the application of force;" (2) 'the relationship between the need and the amount of force that was used'; (3) 'the extent of the injury inflicted'; (4) 'the extent of the threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of the facts known to them'; and (5) 'any efforts made to temper the severity of the response.'"

Id. (quoting Whitley, 475 U.S. at 321).

See also Bright v. Gillis, 89 Fed. Appx. 802, 805 (3d Cir. 2004) (Court stated the factors in establishing an Eighth Amendment excessive force claim against prison staff); Caldwell v. Luzerne County Correctional Facility Management, 732 F.Supp. 2d 458, 469 (M.D. Pa. 2010) citing Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000).

The Court in Wesley v. Dombrowski, 2004 WL 1465650 *6 (E.D. Pa.), stated:

"The core inquiry in claims of excessive force is 'whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm'." (Citing Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)).

The Wesley Court also stated:

While the Eighth Amendment's proscription against cruel and unusual punishment excludes from constitutional recognition de minimis uses of physical force if the use of force is not of a sort "repugnant to the conscience of mankind," to state a claim, the plaintiff need only allege that force was maliciously applied to cause harm." Id. (Citation omitted).

Wesley, 2004 WL 1465650 *6. See also Eppers v. Dragovich, 1996 WL 420830 (E.D. Pa.).

Based on the above, the Court has found, for screening purposes under the PLRA, that Plaintiff stated a cognizable Eighth Amendment excessive force claim against Defendant Pugh regarding the February 2010 incident. Plaintiff's and Defendant Pugh's statements under oath as to the existence of this incident are completely inconsistent. Using the factors set out by the Bright Court, based on the evidence, there was no need for the use of force by Defendant Pugh against Plaintiff in February 2010, and there appears to have been no threat to the safety of either the other inmates or the prison staff which could have reasonably been perceived by Defendant Pugh. However, the undisputed evidence shows that the one push Plaintiff stated occurred caused him no discernible injury and was very minor.

In Caldwell v. Luzerne County Correctional Facility Management, 732 F.Supp. 2d at 469, the Court stated:

The prisoner need not show significant injury to state an excessive use of force claim. Hudson, 503 U.S. at 8, 10, 112 S.Ct. 995. However, "[t]hat is not to say that every malevolent touch by a prison guard gives rise to a federal cause of action. The Eighth Amendment's prohibition of 'cruel and unusual' punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Id. at 9-10, 112 S.Ct. 995 (citations omitted). Further, an inmate who complains of a "push or shove" that causes no discernible injury "almost certainly fails to state a valid excessive force claim." Wilkins v. Gaddy, --- U.S. ----, 130 S.Ct. 1175, 1178, 175 L.Ed.2d 995 (2010) (citing Hudson, 503 U.S. at 9, 112 S.Ct. 995).

The Court in Caldwell, 732 F.Supp. 2d at 470, also stated:

With respect to the incident of May 26, 2009, it cannot be said that the actions taken by Defendant Officer Bleich on that date rise to the level of a constitutional violation. The fact that on that date Defendant Officer Bleich punched Caldwell once in the back of the head is not the type of condition which rises to the level of an Eighth Amendment violation. See Reyes v. Chinnici, 54 Fed.Appx. 44, 47 (3d Cir.2002) (holding officer's punch of an inmate was not excessive force); Brown v. Vaughn, No. 91-2198, 1992 WL 82310, at *2 (E.D.Pa. Apr. 13, 1992) (granting summary judgment where corrections officer initiated violence by punching plaintiff-inmate once, and pushing, spitting, verbally abusing, and using racial slurs against him). Instead, at best, Caldwell has shown only a de minimis use of force by Defendant Officer Bleich. As a result, Defendants' motion to dismiss will be granted as to the claims arising out of the May 26, 2009 incident.

It is clear, in viewing the evidence in a light most favorable to Plaintiff regarding the pushing incident, the undisputed evidence shows only a de minimis use of force by Defendant Pugh and that the push resulted in only minor pain and soreness to Plaintiff's back, requiring no medical care. In fact, Plaintiff testified that he only "got knocked against the desk" and then fell on the floor. (Doc. 62, Ex. F, p. 19). We agree with Defendants who state that "no reasonable jury could find that the de minimis force utilized by Defendant Pugh was 'of a sort repugnant to the conscience of mankind' in violation of the Eight Amendment." (Doc. 63, p. 20)(footnote omitted). See Knauss v. Shannon, 2010 WL 569829, *13. As such, we find the Caldwell case directly on point with our case, and we will recommend that the Court grant Defendants' Summary Judgment Motion with respect to Plaintiff's Eighth Amendment excessive force claim against Defendant Pugh arising out of the February 2010 pushing incident at LCCF.

We now turn to the Eight Amendment failure to protect claim against Defendant Elmy.

2. Eighth Amendment Failure to Protect Claim against Defendant Elmy

We find no evidence submitted by Plaintiff to show that Defendant Elmy failed to protect him from the alleged pushing incident involving Defendant Pugh.

In Glazewski v. Corzine, 385 Fed.Appx. 83, 88 (3d Cir. 2010), the Court stated:

To establish a failure to protect claim, an inmate must demonstrate that:

(1) he is "incarcerated under conditions posing a substantial risk of serious harm;" and (2) the prison official acted with "deliberate indifference" to his health and safety. Farmer, 511 U.S. at 834, 114 S.Ct. 1970. "[T]he official must actually be aware of the existence of the excessive risk; it is not sufficient that the official should have been aware." Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir.2001).

See also Knauss v. Shannon, 2010 WL 569829, *14.

The Court in Knauss stated:

In the instant case, Knauss has not met either the objective or subjective element of a failure-to-protect claim against Defendant Wagner. Initially, Knauss has not demonstrated a substantial risk of serious harm because, as discussed herein, the force used and injury sustained were minor. Moreover, "[a] pervasive risk of harm may not ordinarily be shown by pointing to a single incident or isolated incidents." Riley v. Jeffes, 777 F.2d 143, 147 (3d Cir.1985) (citations omitted). Further, Knauss has not sufficiently alleged that Defendant Wagner was deliberately indifferent to Knauss' health or safety, as there is no allegation that Defendant Wagner had any knowledge that Defendant Hannon would strike Knauss. Thus, because Defendant Wagner could not have been deliberately indifferent to a risk of which he was unaware, Knauss has failed to state a claim of failure-to-protect against Defendant Wagner. See, e.g., Matthews, 2009 WL 311177, at *5.

As discussed above, similar to the Knauss case, Plaintiff Jones had not met either the objective or subjective element of a failure to protect claim against Defendant Elmy since the evidence shows that the alleged single push by Defendant Pugh and Plaintiff 's injury were only minor. Also, Plaintiff testified that he only heard Defendant Elmy speaking at the time of the push and that he did not know if Elmy was in the room with Pugh and him. Specifically, Plaintiff testified that:

Q. So it was Lt. Pugh who pushed you.

A. Yes.

Q. Did any other correctional officer during this period of time in or about February of 2010 push you or assault you in any way?

A. No.

Q. Now, you say you fell to the ground; is that right?

A. Fell to the floor, yes. The small of my back hit the desk and I hit the floor.

Q. Who else witnessed this occurrence?

A. I think Stacey was there, but if she was she was behind - -Q. Who is Stacey?

A. She's the accountant lady. If she was there - - I'm not sure she was there because she is behind like a divider back there. She could have been back there.

Q. Do you know Stacey's last name?

A. No, I don't. They just call her Stacey. Then I know Lou Elmy was within the vicinity because I heard him speaking. I didn't know if he was immediately in the room. It seemed like it all happened really fast.

I know I heard them talking, and I know there was a bang, and when I turned around he was around to see what was happening. I was surprised that I didn't get an assault charge. I was surprised they didn't turn it around on me, to be honest.

Q. Did you do anything or raise a hand to provoke Lt. Pugh?

A. Never. I am not a violent person at all.

Q. Did you sustain any injuries as a result of being pushed into the desk?

A. Just bruised and sore lower back. I waited until when I got back to the main jail, and when I continued to have pain or - - and it was stiff. I just went to the med line and just paid for $9 for Motrin for the month. (Doc. 62, Ex. F, pp. 17-18)(emphasis added).

Further, Defendants' undisputed evidence, namely Defendant Elmy's deposition testimony, shows that:

7. I am, during the relevant time frame, Christian Jones' Correctional Counselor. With respect to the allegations of the Complaint, I verify and attest that at no time did Jones indicate to me that he had been subjected to verbal abuse by correctional staff at the Luzerne County Prison. In addition, at no time did Jones indicate to me that he had been assaulted either by Captain Pugh or any other correctional officer at the facility. Finally, at no time did Jones indicate to me that requests for medical treatment at the facility had been refused. (Doc. 62, Ex. E, ¶ 7).

There is no evidence that Plaintiff reported the alleged single push by Defendant Pugh to prison staff and Plaintiff did not testify that he reported the incident to anyone. There is no evidence that Defendant Elmy was aware of the threat of assault on Plaintiff before the pushing incident occurred and, there is no evidence that Defendant Elmy was even in the room at the time of the push or witnessed the incident. Rather, Plaintiff stated only that he knew Defendant Elmy was in the vicinity since he heard him speaking. Also, Plaintiff does not claim that Defendant Elmy failed to take any steps after the pushing incident to protect him from subsequent incidents. Thus, based on Glazewski and Knauss, we find that Defendant Elmy is entitled to summary Judgment with respect to Plaintiff's failure to protect claim.

Even if Plaintiff is construed as rasing a failure to intervene claim against Defendant Elmy, this Defendant would be entitled to summary judgment. In Knauss, the Court stated:

Turning to a failure-to-intervene claim, in a case where an inmate claims an officer had a duty to take reasonable steps to protect a victim from another officer's use of excessive force, the inmate must prove that

(1) the officer had a duty to intervene; (2) the officer had the opportunity to intervene; and (3) the officer failed to intervene. Smith v. Mensinger, 293 F.3d 641, 650-51 (3d Cir.2002). Specifically, "an officer is only liable if there is a realistic and reasonable opportunity to intervene."

Id. at 651.

In our case, as in Knauss, there is simply no evidence that Defendant Elmy had any knowledge that Defendant Pugh was going to assault Plaintiff, and there is no evidence that Defendant Elmy had the opportunity to intervene to stop the alleged single and quick push by Defendant Pugh. As stated, there is no evidence that Defendant Elmy witnessed any push or that Elmy was in the room or could see in the room at the time of the alleged push. Thus, Defendant Elmy did not fail to intervene to protect Plaintiff from the alleged push.

V. Recommendation.

Based on the foregoing, it is respectfully recommended that the Motion for Summary Judgment of Defendants Pugh and Elmy (Doc. 61) be granted with respect to Plaintiff's Eighth Amendment excessive force claim against Defendant Pugh regarding the pushing incident and with respect to Plaintiff's Eight Amendment failure to protect claim against Defendant Elmy. It is also recommended that Judgment be entered in favor of Defendants Pugh and Elmy, and against Plaintiff Jones. Further, it is recommended that Plaintiff's "Petition for Settlement" (Doc. 65) be denied. Additionally, it is recommended that Plaintiff's untimely Motion to Compel Defendants to respond to his requests for documents and interrogatories (Doc. 71) be denied.

s/ Thomas M. Blewitt

THOMAS M. BLEWITT United States Magistrate Judge Dated: October 6, 2011

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CHRISTIAN JONES, CIVIL ACTION NO. 3:CV-10-0359 Plaintiff : (Judge Jones) v. : (Magistrate Judge Blewitt) Lt. PUGH, et al., Defendants

NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated October 6, 2011.

Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in

28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

Thomas M. Blewitt

THOMAS M. BLEWITT United States Magistrate Judge


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